Wrongful Discharge? Maybe Yes, Maybe No

By D. Jill Pugh

“Wrongful termination” is a phrase I hear a lot from potential clients seeking my representation in an employment dispute. I’ve even sometimes heard it used by attorneys not experienced in employment law. Strictly speaking, there is no cause of action for “wrongful termination.” In order for a termination to be legally actionable, it must be “wrongful” for a particular reason defined by statute or made “wrongful” by common law. This is so because “at will” employment is the general state for most nonunion employees (that is, they can be discharged for no reason, a bad reason, or any reason as long is it is not a specifically identified illegal reason).

There are then two categories of “wrongful termination”: 1) a wrongful termination in violation of a statute; or 2) wrongful termination in violation of public policy (tort claim).

In general, plaintiff employees meet the elements of a wrongful termination in violation of a statute claim if they can establish the following: (1) they are members of a protected class (or engaged in statutorily protected activity); (2) they are doing satisfactory work; (3) they were discharged; and (4) similarly situated individuals outside the plaintiffs’ protected class were treated more favorably, or other circumstances surrounding the adverse employment action give rise to an inference of discrimination.

Some statutory examples include: (1) Title VII of the Civil Rights Act of 1964, which made it unlawful to discharge any individual because of that individual’s race, color, religion, sex, or national origin; (2) the federal Age Discrimination in Employment Act, protecting individuals from discharge based on their age, if over 40; (3) the Fair Labor Standards Act, making it unlawful to discharge employees for asserting their rights to legal compensation; (4) many federal “whistleblower” statutes, including the new 2009 federal stimulus package, which makes it illegal for an employer to discharge a whistleblower as defined by the relevant statute.

The elements of a wrongful termination in violation of public policy are similar, but the plaintiff employee also bears the burden of demonstrating what public policy the court should find more compelling than the general doctrine of “at will” employment. The claim “wrongful discharge in violation of public policy” is very much grounded in state law, and the nuances will vary from state to state, but in general a plaintiff employee must demonstrate: (1) the existence of a clear public policy; (2) that discouraging the conduct in which the plaintiff employee engaged would jeopardize the public policy; (3) a causal link between the plaintiff employee’s conduct in furtherance of the public policy and his or her discharge; and (4) that the defendant employer cannot articulate an overriding justification for the dismissal.

Courts have found exceptions to the “at will” nature of the plaintiff’s employment when the employee was discharged for refusing to engage in an illegal act, when discharged for performing a public duty or obligation such as serving on jury duty, or discharged for taking legal action to protect the employee’s family from domestic violence, among other public policies.

So when potential clients call and say they think they have been “wrongfully terminated,” you need to determine if they fall under the protection of a specific statute or if their termination is related to employee conduct in furtherance of a significant state public policy.